30 September 2010

The ad hoc End of Life Assistance Committee has chewed through its oral evidence-taking with astonishing alacrity. Embarking on the questioning of twelve panels of witnesses on the 7th of September, the tenth and eleventh groups appeared before tribunes this Tuesday, leaving only the Bill's sponsor, Margo MacDonald, to speak to the proposed assisted dying legislation in the twelfth and final session on the 5th of October.

This week, my eye was caught by the tenth and eleventh sessions. In the first, the Lord Advocate Elish Angiolini was originally scheduled to appear, but in the event was replaced by the Solicitor General, Frank Mulholland. I'll be returning to the evidence on assisted suicide, disability and a life worth living - key issues for the eleventh panel in a later post. I've blogged before about the opacity of the Scots criminal law on assisting suicide. Despite fairly regular errors in the press, there is no "UK law" on the subject. In England and Wales, "assisting suicide" is a statutory offence, contained in a piece of legislation - the Suicide Act 1961 - which does not extend to Scotland. There is no straightforward parallel offence in Scotland's Common Law, therefore one would be well advised to avoid claiming that "assisting suicide" is illegal in Scotland.

Rather, as the Solicitor General told MSPs, "the law of Scotland which covers this field is the law of homicide". The committee's convenor, Holy rood's doughty Captain Mainwaring , Ross Finnie opened the session by emphasising that Mulholland was in a position to set out "points of Scots Law important to have on the record". In the event, the session proved unilluminating, mostly due to the failure of committee members to ask pointed, clarifying questions about the Crown Office's understanding of the present legal position. The Solicitor General spoke to two distinct concerns - firstly, the Scots law of homicide - and secondly, the general process and values informing how Scottish prosecutors evaluate particular cases that come before them.

He spoke to the need for public interest, about mens rea, actus reus, the criminal mind and the criminal act. Like a lecturer in criminal law summarising doctrine for our goggling representatives, he delivered a deft but brief survey of the elements of the offence, including the doctrines of causation and concert, defences of provocation and so on. Here is where matters get a little murkier, and unfortunately no member strove to clarify the points of uncertainty or debateability.

Mulholland suggested that if you provide another person with a "deadly cocktail of drugs", without administering them to that individual, your conduct would be indictable as a culpable homicide, where that individual perishes. You cannot consent to your own death, the reasoning runs, and legal causation would not be broken. The death would be attributable to you. His argument on the basis of concert does seem somewhat problematic, primarily because suicide is not illegal. Is it terrifically plausible, on an art-and-part theory, that one can be illegally complicit in a basically legal act?

We cannot be talking about bare assistance here - because as you'll recall that isn't criminalised in Scotland. What we're talking about is the law of homicide. If only one of the committee had spoken up, seizing the most obvious example of families and friends helping their loved ones to fly to a Dignitas clinic in Switzerland, there to end their existences. I'd have been deeply interested to hear whether the Solicitor General believes that by buying a one-way airline ticket and helping your associate to the airport in full knowledge of their intention to die at their ultimate destination, you commit culpable homicide for the purpose of Scots law. When the taxi driver asks "Off on your holidays are you?" and you tell him your real plans, does that make him your accomplice, under threat of legal sanction for his homicide? These, after all, are the sort of legal uncertainties which Margo's Bill might serve to clarify. For example, Liberal MSP Jammy Purvis was once quoted in the Scotsman claiming that:

“It is technically illegal to assist someone who wishes to end their life. It is considered culpable homicide and anyone who tried to help someone go to a clinic in Switzerland or anywhere else where is it legal to make end-of-life choices could be convicted of the very serious criminal offence.”

I’d like him to cite some specific authority to support this claim, since as far as I’m aware there have never been any prosecutions for culpable homicide on this sort of fact-pattern. I'd have liked once of the Committee members to ask what the Solicitor General made of it. While some assisted suicides may amount to culpable homicides – that does not entail any correlative claims that all acts which would be illegal as assisting suicide under the 1961 Act will amount to culpable homicides in Scotland. Why should there be that identity? Isn’t it a bit strange, after all, that legislation was required to criminalise this in England, but in Scotland, we somehow, miraculously covered the selfsame conduct with a misty idea of culpable homicide?

While I can see how facilitating someone’s plane travel may amount to assisting them to commit suicide, I experience more of a struggle to see, in isolation, how such conduct amounts to a culpable homicide. Such an interpretation strikes me as stretching the plasticity of the offence beyond reason and imputing causality in a most implausible fashion. A grave pity, then, nobody thought to ask Law Officers what their understanding of what criminal liability - if any - attaches to such conduct. Not least because I'm not terribly confident that Holyrood will pass Margo's Bill, while the Common Law offences of homicide will stay with us, and persist.

Unfortunately, the MSPs on the End of Life Assistance Committee really wasted this opportunity.

29 September 2010

For completeness, just a brief post to note that official confirmation has been received that §38 of the Criminal Justice & Licensing (Scotland) Act 2010 will commence by ministerial order next week on the 6th of October. This we knew already, by dint of confirmations made elsewhere, some time ago. However, for the avoidance of any dubiety, this clear response from ministers is helpful. In answer to parliamentary questions laid by Liberal Democrat Justice spokesman Robert Brown and Labour MSP Cathy Peattie, the Cabinet Secretary for Justice responded:

Answered by Kenny MacAskill (Tuesday, September 28, 2010): A commencement order has been made which will bring section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 into force on 6 October 2010.

An operative §38 will criminalise threatening of abusive behaviour, as defined below. Crucially, this legislatively-composed offence makes no reference to distinctions between publicity and privacy. Prosecutions under this section will not therefore have to contend with the public element of the Common Law offence of breach of the peace, whose sometimes rather tortuous distinctions were exemplified by the decision Hatcher v. Procurator Fiscal, Hamilton whichbrought us to this pass in the first place. I reiterate my thanks to Robert Brown and Cathy Peattie for their efforts to clarify - and if necessary - coax ministers into making the needful orders in an expeditious fashion. Happily, that does not appear to have been necessary. In future, Hatcher-type conduct should be clearly criminalised in the following terms:

38 Threatening or abusive behaviour

(1) A person (“A”) commits an offence if—

(a) A behaves in a threatening or abusive manner,

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

(2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

(3) Subsection (1) applies to—

(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and

(b) behaviour consisting of—

(i) a single act, or

(ii) a course of conduct.

(4) A person guilty of an offence under subsection (1) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

27 September 2010

This afternoon, the SNP announced the rankings of candidates on the regional list for the approaching Holyrood election in 2011. A quick analysis suggests that several incumbents will not be returning to Holyrood after next May. In the Glasgow list, the exceedingly youthful Humza Yousaf handily overcomes the leader of the SNP group in Glasgow City Council and veteran tribune Sandra White. Incumbent MSP Bill Kidd effectively crashes out of contention with his seventh place ranking, as does Bill Wilson who ended up 8th on a busy list in the Lothians, joined by Christina McKelvie, who came 6th in Central Scotland. Further from Glasgow, in all probability, we can expect to see a new blog entitled Indygal Leaves Holyrood.

Mike Russell's second placing in the Highlands and Islands list only behind Fergus Ewing suggests that the press scuttlebutt claiming that he might be in spot of difficulty has come to nowt. Speaking of Ewings, Fergus' sister Annabelle managed to o'erleap Minister for Skills & Lifelong Learning, Keith Brown to secure fourth place on the mid-Scotland list. I was also surprised to see that one Joan McAlpine has been ranked fourth in the South of Scotland list. I'm reliably informed that this is the blogosphere's own Joan McAlpine, of Go Lassie Go. The SNP picked up five list seats in the South of Scotland in 2007, so there is a decent chance of seeing that flame haired nationalist damsel on Holyrood's benches in 2011. How this will all pan out obviously depends very much on results in constituencies. No doubt there are other many, many other tales hiding in the hierarchies and cunning analyses the psephologically sensitive might perform. Those are just a few of the things which immediately leapt out at me.

The Procurator Fiscal reference is ED08006686. The Court likes to think of it as IN92/09. The police, just to be different, record it under the reference PLB0544190007. To the rest of us, and I dare say to the accused persons whose lives and reputations are imperilled by the prospect of imprisonment and public disgrace, it is the long-awaited perjury trial of Tommy and Gail Sheridan. It is easy to forget that Sheridan's successful £200,000 defamation action against the News of the World concluded at the beginning of August 2006, more than four years ago now. Having hesitated, mused and pondered, at last court rolls confirm that the trial is now due to begin next Monday on the 4th of October. To be held in the High Court in Glasgow, Lord Bracadale will be presiding. It is estimated that the case will last some 50 days. Sherry will be represented by Maggie Scott QC, who replaced the more-notorious fantooshly-face-furnitured Donald Findlay QC in September 2009. Scott is known to be a formidable lady with significant experience in criminal matters. Meanwhile, Gail Sheridan will be separately serviced by watershed Tory, Paul McBride QC. At present, I'm not sure who the prosecuting Advocate Depute, appearing for the Crown, is to be. Any better informed souls in my reading public, do please speak up.

So much time has passed since it was first published, you may have rather forgotten what precise charges the husband and wife pairing have been indicted for and what facts the Crown intends to contest. The details are lurid. The press will undoubtedly have not just one, but fifty field days. Here is a full copy of the indictment, as published on the 13th of July 2009:

Thomas Sheridan, born 7 March 1964, whose domicile of citation has been specified as Paisley Road West, Glasgow, and Gail Sheridan, born 4 January 1964, whose domicile of citation has been specified as Paisley Road West, Glasgow, you are indicted at the instance of The Right Honourable Elish Angiolini, Queen's Counsel, Her Majesty's Advocate, and the charges against you are that

(1) you THOMAS SHERIDAN having raised an action of defamation in the Court of Session, Parliament House, Parliament Square, Edinburgh against News Group Newpapers Limited, 124 Portman Street, Kinning Park, Glasgow, a company incorporated under the Companies Acts, being the publisher of the News of the World newspaper, in which you alleged that on 21 November 2004 the said newspaper had published an article communicating the false idea that you had visited a "swingers club" with Anvar Begum Khan, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh, and knowing that a civil jury trial had been fixed for the hearing of said action on 4 July 2006 and having on 9 November 2004 at a meeting of the Executive Committee of the Scottish Socialist Party held at 70 Stanley Street, Glasgow, attended by, among others, Colin Fox, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh, admitted attending such a club and in particular Cupid's Healthclub, 13-17 Sutherland Street, Swinton, Manchester on two occasions in 1996 and 2002 and knowing that accurate minutes of the said meeting existed and had been lodged on 16 June 2006 at the said Court on behalf of the said defender and that said Colin Fox was to be called as a witness at said trial did on 18 June 2006 at the premises known as The Beanscene, 67 Holyrood Road, Edinburgh attempt to suborn said Colin Fox, to falsely depone as a witness that the minutes of said meeting were not accurate and you did thus attempt to suborn said Colin Fox to commit perjury;

Friday (2) on 21 July 2006 at the Court of Session, Parliament House, Parliament Square, Edinburgh you THOMAS SHERIDAN being affirmed as a witness in a civil jury trial of an action for defamation then proceeding there at your instance against the News Group Newspapers Limited, 124 Portman Street, Kinning Park, Glasgow as publishers of the News of the World newspaper did falsely depone:

a) that at a meeting of the Executive Committee of the Scottish Socialist Party held on 9 November 2004 at 70 Stanley Street, Glasgow you had not admitted you had attended Cupid's Healthclub, 13-17 Sutherland Street, Swinton, Manchester known as Cupid's on two occasions in 1996 and 2002 and that you had not admitted that you attended there with Anvar Begum Khan c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh;

b) that at said meeting on 9 November 2004 Alan William McCombes and Keith Robert Baldassara, both c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh did not state that they had previously raised the issue with you of your visits to a sex club in Manchester and that you had admitted to them that it was true;

c) that at said meeting you denied having visited a swingers' club in Manchester;

d) that Allison Kane, Keith Robert Baldassara, Alan William McCombes, Allan Green, Colin Anthony Fox, Barbara Jane Scott, Carolyn Leckie, Catriona Mary Grant, Joanna Harvie, and Rosemary Kane all c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh had lied in evidence during said civil jury trial when each gave evidence that: - they had heard you admit at said meeting on 9 November 2004 that you had visited said Cupid's in Manchester; and they heard it being stated at said meeting on 9 November 2004 that Alan William McCombes and Keith Robert Baldassara had previously raised the issue with you of your visits to a sex club in Manchester and that you had admitted to them that it was true;

e) that you had not admitted in 2002 to said Alan William McCombes and Keith Robert Baldassara that you had attended a sex club in Manchester;

f) that you did not say at the said meeting held on 9 November 2004 that you were not prepared to resign as convener of the Scottish Socialist Party unless there was proof that you had attended a sex club in Manchester and that you did not believe that there was any evidence to prove that you were lying about not attending said club;

g) that in a pub known as the Golden Pheasant,2 Stepps Road, Kirkintilloch on or around Friday 12 May 2006 you were not given the minutes of the said meeting of 9 November 2004 to read;

h) that said Alan Green lied during his evidence in said civil jury trial that in said pub known as the Golden Pheasant on or around 12 May 2006 he had shown you the minutes of the said meeting of 9 November 2004;

i) that there was not an event on 14 June 2002 or at any other time at the Moathouse Hotel, Congress Road, Glasgow organised by Matthew McColl, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh which you attended along with Andrew McFarlane, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh at which you and said Andrew McFarlane went into a bedroom with a girl and had sexual relations with said girl;

j) that Helen Todd Allison and Lily Anne Colvin both c/o Lothian and Borders Police, Police Headquarters, Fettes Road, Edinburgh lied in their evidence during said civil jury trial when each gave evidence that you were at the Moathouse hotel with said Andrew McFarlane;

k) that a conversation between you and said Keith Robert Baldassara had not taken place when said Keith Robert Baldassara had asked you about "madness" somewhere in a hotel in Glasgow and that you said to him that you did not participate, but were present at the event when a lady from Birmingham was brought in;

l) that said Keith Robert Baldassara lied in his evidence during said civil jury trial that he had asked you about "madness" somewhere in a hotel in Glasgow and that you said to him that you did not participate, but were present at the event when a lady from Birmingham was brought in;

m) that you had not attended said Cupid's in Manchester along with Andrew McFarlane, Gary Clark, Anvar Begum Khan and Katrine Trolle all c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh towards the end of 2001, or had ever visited a swingers' club;

n) that you had an affair with said Anvar Begum Khan in late 1992 for six months only and that you did not have a sexual relationship with her from 1994 to 2002; and

o) you never had a sexual relationship with said Katrine Trolle and had never been with her in the house occupied by you at Paisley Road West, Cardonald, Glasgow or with her at Kingennie Court, Dundee; the truth being as you well knew, that on 9 November 2004 at the Executive Committee meeting of the Scottish Socialist Party held at 70 Stanley Street, Glasgow, you did admit to attending said Cupid's in Manchester on two occasions in 1996 and 2002 and that you had visited said club with said Anvar Begum Khan;

B) that at said meeting it was stated by said Alan William McCombes and Keith Robert Baldassara that they had previously raised the issue of you attending a sex club in Manchester and that you had admitted to them that it was true; that at said meeting you did not deny having visited a swingers' club in Manchester; that said Allison Kane, Keith Robert Baldassara, Alan William McCombes, Allan Green, Colin Anthony Fox, Barbara Jane Scott, Carolyn Leckie, Catriona Mary Grant, Joanna Harvie and Rosemary Kane had not lied in evidence during the said trial when they each gave evidence that:

i) they had heard you admit at said meeting on 9 November 2004 that you had visited the said Cupid's in Manchester on two occasions and ii) they had heard it being stated that said Alan William McCombes and Keith Robert Baldassara had previously raised the issue with you of your visits to a sex club in Manchester and that you had admitted to them that it was true; that:

ii) on 3 November 2002 in the course of a journey between Glasgow and Edinburgh you did admit to said Keith Robert Baldassara that you had attended a sex club in Manchester; ii) on an occasion between 4 November 2002 and 31 December 2002, at the City Chambers, George Square, Glasgow, you did admit to said Alan William McCombes that you had visited a club for swingers in Manchester and

iii) on 1 November 2004 at the City Chambers, George Square, Glasgow, you did admit to said Alan William McCombes and Keith Robert Baldassara that you were the MSP referred to in the News of the World article published on 31 October 2004 and that you had attended said Cupid's in Manchester with said Anvar Begum Khan; that you did state at the said meeting held on the 9 November 2004 that you were not prepared to resign as convener of the Scottish Socialist Party unless there was proof that you had attended the said Cupid's in Manchester and that you did not believe that there was any evidence to prove that you were lying about not attending said club;

G)/ that on 12 May 2006 at the premises known asThe Golden Pheasant, 2 Stepps Road, Kirkintilloch said Allan Green did show you the minutes of the said meeting of the 9 November 2004; that said Allan Green had not lied during his evidence during said civil jury trial that on 12 May 2006 he had shown you the minutes from the said meeting on 9 November 2004 at said premises known as The Golden Pheasant, 2 Stepps Road, Kirkintilloch; that you did attend the said Moathouse Hotel on 14 June 2002 at an event organised by said Matthew McColl along with said Andrew McFarlane at which you and said Andrew McFarlane went into a bedroom with Beverly Anthea Dixon, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh and you did have sexual intercourse with said Beverly Anthea Dixon; that said Helen Todd Allison and Lily Anne Colvin had not lied during their evidence during said civil jury trial when they said that they had seen you at the said Moathouse Hotel with said Andrew McFarlane; that between 15 June and 15 July 2002, both dates inclusive, at the City Chambers, George Square, Glasgow, said Keith Robert Baldassara did ask you about "madness" somewhere in a hotel in Glasgow and you stated to said Keith Robert Baldassara that you had been present at said Moathouse Hotel when a lady from Birmingham had been present and that this event had been organised by said Matthew McColl for said Andrew McFarlane; that said Keith Robert Baldassara did not lie in evidence during said civil jury trial that between 15 June and 15 July 2002, both dates inclusive, at the said City Chambers, George Square, Glasgow, that he had asked you about "madness" in a hotel in Glasgow and that you had said to him that you had been present at the Moathouse Hotel when a lady from Birmingham had been present and that this event had been organised by said Matthew McColl for said Andrew McFarlane; that on 27 September 2002 you did attend said Cupid's in Manchester with said Andrew McFarlane, Gary Clark, Anvar Begum Khan and Katrine Trolle and that you had visited a club for swingers; that between 1 January 1994 and 28 September 2002 you did have a sexual relationship with said Anvar Begum Khan; and

O)/ that between 1 January 2000 and 31 December 2005, both dates inclusive, you did have a sexual relationship with Katrine Trolle, that she had been in the house occupied by you at Paisley Road West, Cardonald, Glasgow with you and that you had stayed overnight with her at 16 Kingennie Court, Dundee;

And lastly, the rather shorter, rather less raunchy and rambunctiously sexualised indictment that Gail Sheridan will answer to:

Monday (3) on 31 July 2006 at the Court of Session, Parliament House, Parliament Square, Edinburgh, you GAIL SHERIDAN being sworn as a witness in a civil jury trial of an action for defamation then proceeding there at the instance of Thomas Sheridan, MSP, your husband, residing at Paisley Road West, Cardonald, Glasgow against News Group Newspapers Limited, 124 Portman Street, Kinning Park, Glasgow as publishers of the News of the World newspaper did falsely depone:

that you saw and spoke to Katrine Trolle, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh, at the Scottish Socialist Party Conference held in Perth in 2005, and that said Katrine Trolle told you there that the News of the World had been at her door, asking her if she had had an affair with Tommy Sheridan and had offered her money and that she hugged and kissed you and touched your "tummy";

that you had checked your diaries and the diaries of said Thomas Sheridan for November 2001 and November 2002 and that the entries confirmed that you had been at home overnight during every weekend in November 2001 and November 2002;

that you could recall that you spent every weekend in November 2001 and November 2002 with said Thomas Sheridan; that you were present and witnessed said Thomas Sheridan on an occasion telephoning Directory Enquiries and asking for the telephone number of Cupid's Health Club, 13-17 Sutherland Street, Swinton, Manchester known as Cupid's and said Thomas Sheridan telephoning the said Cupid's;

that your aunt, Annie Healy c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh arrived into Scotland from the United States of America on 14 June 2002; that said Thomas Sheridan was in your company during the whole of the evening of the 14 June 2002 and returned home with you after midnight on 15 June 2002;

and g)/ that you and said Thomas Sheridan visited Andrew McFarlane c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh, at his home at 216 Tweedmuir Road, Glasgow after 10pm on the 14 June 2002 when said Andrew McFarlane and James McManus c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh were present there between that time and when you left with said Thomas Sheridan after midnight on the 15 June 2002;

the truth being as you well knew, that you did not see or speak to said Katrine Trolle at the Scottish Socialist Party Conference held in Perth between 11 and 13 February 2005 and that the said Katrine Trolle did not tell you that the News of the World had been at her door asking her if she had an affair with Tommy Sheridan and had offered her money and said Katrine Trolle did not hug and kiss you and touch your "tummy";

that you had recorded in your diary that you had travelled to Miami on Tuesday 20 November 2001 and you were in Miami on the weekend of 24 and 25 November 2001 and that said Thomas Sheridan had recorded in his diary that you were away between 21 and 28 November 2001;

that you were in Miami on 24 and 25 November 2001 and you did thus not spend every weekend in November 2001 with said Thomas Sheridan; that on 23 November 2001 you were not present on the occasion when said Thomas Sheridan phoned directory enquiries and said Cupid's in Manchester;

that your aunt, said Annie Healy arrived in Scotland from the United States of America on 12 June 2002; that you were not with said Thomas Sheridan during the whole of the evening of 14 June 2002;

and that you were not in the company of said Thomas Sheridan, Andrew McFarlane and James McManus within 216 Tweedmuir Road, Glasgow continuously between 10pm on 14 June and 1am on 15 June 2002.

One has to wonder sometimes about the speed and efficacy of Holyrood's parliamentary procedures. On the 13th of September, I composed this blog post on the deeply worrying implications of the case of David Hatcher v. Procurator Fiscal, Hamilton for the prosecution of domestic abuse in Scots courts. Concerned that there was no indication that the press had realised the implications of the High Court of Justiciary's (to my mind, chimerical) judgementand the hence no public pressure to pursue the reforming measures which the judgement urgently suggested, I shamelessly sent a link to the piece to every MSP. To their credit, despite my pseudonymity and cybernattery, a number of them responded directly. My thanks to John Park, Robert Brown, Bailie Bill Aitken, Cathy Peattie, Ross Finnie and Bill Wilson for their responses and to Robert Brown in particular - who is one of my constituency MSPs - for tabling the parliamentary question quoted above.

However, we now know that by the 15th of September, Fergus Ewing, Minister for Community Safety, was in a position to tell the Scottish Women's Aid Conference that Ministers intended to commence section 38 of the Criminal Justice & Licensing (Scotland) Act 2010 speedily, from the 6th of October. Similarly, I imagine that ministers will have had a quiet word with interested figures in Holyrood, letting their commencement plans be known. So a firm intention to act has formed, yet the parliamentary question hangs about, quite unnecessarily unanswered, for two weeks. This hardly seems productive to me, leaving those of us outside the institution to rely on unofficial sources and unconfirmed reports from obscure sometime legal cybernats like myself.

Still, I'm delighted to note that today the Scotland on Sunday has finally run a piece on the implications of the Hatcher judgement for domestic abuse prosecutions and mentioning the hasty commencement order which will criminalise threatening or abuse behaviour in Scotland, protecting people who find themselves in the situation of Lorraine Hatcher where the offence of breach of the peace so spectacularly failed to do so. I gather that it was my blog posting on the subject, in part, that brought the potential story to the newspaper's attention. Hardly glowing testament to their ruggedly-independent newshound virtues, you might think. Mostly, however, I'm pleased that some recognition of the importance of the issues at stake has leaked into the more public domain at last. Headlined "Law to close loophole on domestic abuse"the Scotland on Sunday report runs across two pages. I also look forward, with interest, to the ministerial answer to Robert Brown's parliamentary question which should manifest next week.

24 September 2010

"Language is so overwhelmingly oral that of all the many thousands - possibly tens of thousands - of languages spoken in human history only around 106 have ever been committed to writing to a degree sufficient to have produced literature, and most have never been written at all. Of the some 3,000 languages spoken that exist today, only some 78 have literature."

So argued the Jesuit scholar, Walter Ong, in his work on Orality and Literacy (1982). I cannot speak to the historical or contemporary precision of this accounting, but even if the figures mentioned above are taken to be indicative and approximate, the thought is astonishing. I've always found Ong's central thesis - that literacy comes to structure our consciousness - immensely thought-provoking, not least because I'm someone who lives in exaggerated intimacy with the written word. Ong seems to suggest that the transformation effected by literacy is basically binary - a little literacy going a long way to rearrange our consciousnesses. In our society, where the wholesale absence of any literate knowledge of language is an almost unknown phenomenon, Ong's binary distinction doesn't speak very eloquently to our existence and the continuing place of orality in our literate culture. Yet peer around any place of social congress and you'll find innumerable folk leading lives dominated by oral exchanges and for whom reading - and even more so, writing - is decidedly secondary. This always struck me particularly forcefully in Glasgow, with its famous patter and its idiomatic, witty formulas. For Ong, such proverbial tendencies are a hallmark of orality. Just as formulaic description recurs endlessly in Homer's Odyssey, so too the ensemble phrases of Glaswegian patter might be seen to attest to the dominant orality of both forms of communication. This might also explain, in part, the charm of Michael Munro's The Complete Patter, which applies the technology of that great apotheosis of literate logic - the dictionary - to a field of language that had previously remained substantially uncodified.

In my experience, different vocabularies and patterns of Scottish speech are primarily attributed to class considerations, with your literate bourgeois taken to be the most "Anglicised" speaker of Scottish standard English. I undoubtedly fit into that category. However, Ong's analysis might suggest another pregnant and unanticipated distinction - between those Scots like myself, who learn to talk like books and those whose consciousnesses remain dominated by language understood primarily orally, who simply speak and for whom it would be a nonsense to say they are "speaking texts". Much more could be explored and said on the subject but the line of thought strikes me as a potentially interesting one.

These are just a few of the sideline Lowlander thoughts, provoked by this interesting piece over at BellaCaledonia by Alasdair Mac Gill-eain in response to a recent article in the Sunday Herald. Entitled Bad Language and Dodo Journalism, Alasdair isn't speaking about Scots, but instead about Gaelic and the Herald journalist's oddly imbalanced assessment of the importance of far-flung endangered languages in comparison to those we have it in our domestic power to nurture, preserve and foster. I'm not a Gaelic speaker myself. Indeed, I don't have more than a word or two. Alasdair quotes Dr Johnson to wry - but pointed effect - about some of the curious haughtiness and scorn which metropolitan Anglophone Scots fairly regularly express towards our Gaelic speaking friends. Its a curious phenomenon, one we would do well to unpick and attempt to understand and alleviate, lest in due time we'll have to echo the old walnut-faced Auden, lamenting...

O dear white children casual as birds,
Playing among the ruined languages,
So small beside their large confusing words,
So gay against the greater silenceOf dreadful things you did...

22 September 2010

Given the weight of religiously-inspired critical responses to Margo MacDonald’s End of Life Assistance (Scotland) Bill, I anticipated with great interest the 9th panel to give oral evidence before Holyrood’s scrutiny committee, consisting of figures from a range of Scottish faith groups. Curiously, the spokesperson from the Catholic Church seems to be appearing on another day. The following folk appeared in the parliament yesterday:

It is grossly symptomatic of how trite the Scottish press can be that this significant session, addressing an important issue in the country’s religio-political life and the controversies of faith in the agora, was primarily reportedin terms of an off-the-cuff, end of session remark made by a Church of Scotland Minister on the subject of medals. Quality press, my eye.

Helen Eadie began with an unexpectedly pointed question on the “the place of religious evidence” or as the Pope recently put it in Westminster Hall, on the ambit of “the legitimate role of religion in the public square”. This was followed up subsequently by Dr Ian McKee, who put it to the panel that “you’re trying to impose your morals and your religious beliefs on fellow citizens that don’t hold them” and contended that the panel’s appeals to mundane arguments about the social impact of legislative change were largely “side-effect issues”, obscuring the primary religious foundation of their arguments.

In response to Eadie, Dr MacDonald of the Free Church almost immediately embarked on an exegesis of the foundations of his belief in the sanctity of human existence – which underlines the crucial point. To ask someone if their Christianity is simply a personal belief is an absurdity, since it conceives of the faithful mind as if it only looks inward and has no worldview. Christianity posits a whole cosmology, Catholicism a whole redemptive economy. How can one coherently require of the faithful to shrug apologetically when they confess their faith in a higher power, as if to say – don’t take me too seriously; the existence of the Big Man upstairs is just my own dull apprehension. There are distinct questions about what we do, what provisions we make in our administration and law and concerns about the practical imposition of a particular worldview or how any of our convictions or ethical assessments ought or ought not to filter into law. However, the idea that Christians should be thirled to conceptions of “personal belief” is surely a nonsense. Religion, it seems to me, effects a general transubstantiation of the world. As Reverend Ian Galloway expressed it to the Committee, it is “a view of how life is.” The religious literally occupy a different world from those of us who don’t see the hand of the Lord at work in it. That said, atheists too shouldn’t have too relaxed a conscience. After all, the atheist worldview performs a similar act of encompassing those with radically different ideas about what the world is. If the godless feel vexed by the persistent belief in divine ontologies of God, saints, angels, divine sons and so on - feel put upon by the unwelcome figuration of sin being imputed to their lives - imagine the reciprocal difficulty the pious must have with atheistical empty cosmological space. Just as Christian theology encompasses those who don’t submit to it, so too atheism co-opts Christians.

One classic answer to these difficulties is the equalising function of the liberal public sphere, which is imagined as neutral arbiter between incompatible worldviews. One of the great virtues of this position is that it doesn’t mistake consensus for agreement in any fundamental sense on the axioms that lead us there. I'm sure I can have an interesting discussion with a Church of Scotland Minister on the importance of social justice, however even if we managed to agree on what we ought to do and how we should do it - we'd be making a mistake if we thought we'd had a wholesale meeting of the minds. Christ hovers over the Minister's shoulder, while I'm imagine myself in Christless conversation with my own daemon. That shouldn't cause us to devalue the consensus we achieve. By no means. Yet it should also caution us to recall the latent cracks and fissures atop which our consensus is precariously balanced.

However, that equalising function presents problems, not least because it seems methodologically atheistic, premissed on an acceptance of the atheistical world view. Cauld Christian conform. A by-product of this, it seems to me, is that enthusiastic secularists can sometimes mistake methodological atheism for a precondition to participate in the public debate. That is the logic implied by Eadie's question and McKee's references to imposition. The same question would never be asked of a witness who didn't toddle into the parliament as representative of the Lord of Hosts. In short, the atheist is far more likely to see the world in terms of personal beliefs, figured in terms of an equalised public sphere. Participation in debate on these terms calls for no interesting transformations. Not so for the committed Christian, who has to move from one cosmological register of their faith to the artificial equality posited by the public debate. The panel immediately conceded that their intentions were not to impose, but an attempt to participate in the discourse, better to realise the best public good. They bowed head in obeisance to the equalising qualifications of the liberal public sphere. This seems to me to be what Archbishop Rowan Williams was referring to in his response to Pope Benedict the Umpteenth, during the latter's recent visit:

We do not as churches seek political power or control, or the dominance of Christian faith in the public sphere; but the opportunity to testify, to argue, sometimes to protest, sometimes to affirm – to play our part in the public debates of our societies. And we shall, of course, be effective not when we have mustered enough political leverage to get our way but when we have persuaded our neighbours that the life of faith is a life well lived and joyfully lived.

These seem to me to be wise thoughts which emphasise the double movement religious folk in the agora go through to put their views across. For those of us without faith, we would do well to reflect on the fact that our views suffer no comparable ordeal as they cross into the echo-chamber of the public forum - and have some sympathy for our religious fellow citizens. We need not agree with them. Indeed, I oppose the gist of the testimony Holyrood received from this religious panel, as regular readers here will not be surprised to hear. This I would insist upon - a quick thought spent on the little ordeal of faith in politics in Holyrood yesterday, close to home, has much to teach us.

21 September 2010

Whiggish Scots lawyer Henry Cockburn (1779 - 1854) is in many respects a neglected figure, as are the sorts of characters he represents. To my mind, the semoitics of Scotland are rather distorted by the assumption, after Edwin Muir that "although Edinburgh is Scottish in itself, one cannot feel that the people who live there are Scottish in any radical sense" (from his Scottish Journey of 1934).

Of all of Scotland's domestic elites, this anglicising assumption marks the Scottish Bar and the nation's Supreme Courts most of all. This seems to me unfortunate, not least because I don't see the attribution of all oppression to English overlords as terribly productive, concealing as it tends to, the effective operation and implications of Scotland's own "domestic" class stratifications and institutional preserves. That's a matter for another day. For now, I wanted to mention one of Cockburn's curious observations about the judicial conduct of his day and those immediately preceding, which includes the infamous Braxfield and his drinking cronies. Further to this morning's post on the Scottish judiciary's new website, today Lord President Hamilton gave a speech to assembled legal worthies marking the onset of a new Legal Year. Today will also have seen the "Kirking of the Court" in the grey fastness of St Giles High Kirk on Edinburgh's Royal Mile, just around the corner from Parliament House and across the largely unmarked grave of John Knox. Bizarrely, this year has apparently seen a small stooshie about sheriffs' precedence in this clownishly coloured legal parade. In a rare moment of restrained levity, Lord Hamilton wryly laments the disappearance of old Scots legal traditions. These included getting blotto on the bench. He quoted Cockburn's posthumously published Memorials of His Time (1856) thus:

“At Edinburgh, the old judges had a practice at which even their barbaric age used to shake its head. They had always wine and biscuits on the bench, when the business was clearly to be protracted beyond the usual dinner hour… Black bottles of strong port were set down beside them on the bench, with glasses, carafes of water, tumblers and biscuits; and this without the slightest attempt at concealment. The refreshment was generally allowed to stand untouched, and as if despised, for a short time, during which their Lordships seemed to be intent only on their notes. But in a little, some water was poured into the tumbler, and sipped quietly as if merely to sustain nature. Then a few drops of wine were ventured upon, but only with the water; till at last patience could endure no longer, and a full bumper of the black element was tossed over; after which the thing went on regularly, and there was comfortable munching and quaffing to the great envy of parched throats in the gallery. The strong headed stood it tolerably well but it told plainly enough on the feeble. Not that the ermine was absolutely intoxicated, but it was sometimes affected. This was so ordinary with these sages, that it really made little apparent change upon them. It was not very perceptible at a distance and they all acquired the habit of sitting and looking judicial enough, even when their bottles had reached the lowest ebb”

In the popular imagination, judges are Triassic, Jurassic or Cretaceous figures. Like modernity's bewigged and gowned coelacanths, the Senators of the College of Justice glide through serene and timeless legal waters, stoutly patrician and overwhelmingly masculine. Today, a rebuke! Repelling submissions that they are fit museum pieces and jealously vindicating their vitality, they've set up a new website, the Judiciary of Scotland. This is not the bruisingly functional Scottish Courts page we're used to, but a self-conscious "bid to improve judicial communications with both the public and the media" replete with friendly pedagogical tone and some pretty little images snapped around legal Edinburgh. On the home page, the Lord President, Lord Hamilton, fixes us with a patriarchal gaze, hands clasped in a benign show of confidence and security. He leans forward slightly, confidingly, and writes:

"I am very pleased to welcome you to our new judicial website - a first for judges in Scotland. I hope that you find it both helpful and informative. It is our intention to publish as much information as we can, as quickly as we can. I believe it is vital in a democracy that justice is not only seen to be done, but that it operates in an open and transparent way and contributes to public understanding and awareness of what takes place in courts each day across Scotland."

The tone is informative and occasional whimsical. For instance, there is an amusingly elaborate section on "Addressing a Judge" whether in correspondence or in court.You can read about a "day in the life" of various tiers of judicial office holders, from Inner House judge to justices of the peace. There is also this irresistably blunt section on Court Room Etiquette which offers a few matey "tips" about how to behave:

Arrive in good time for your case, dressed appropriately and not under the influence of drink or drugs.

Remain quiet until your case is called.

Be polite and courteous to the judge, other court users and court officials.

Smoking, eating and drinking are not allowed in courtrooms.

You should not read in the courtroom unless asked to by the judge.

Taking audio or video recordings or photographs is not allowed in courtrooms.

Other than guide dogs, pets are not allowed in courtrooms.

Do not bring unnecessary items or items that could be used as a potential weapon to court as they will be liable to confiscation.

Children under 14 are not normally allowed in a courtroom unless they are giving evidence, or have the court’s prior approval to attend for educational purposes.

You are expected to stand up when the judge comes into or leaves court. You will know this is happening when the macer announces ‘court’

And please don’t forget to switch your mobile phone off.

I also note with interest that the site includes photographs of almost all of the Senators of the College of Justice and Sheriffs Principal, a practice which was historically avoided in the context of an unsettled Northern Ireland. For robe-enthusiasts, it is also a pleasing opportunity to admire the Scottish Court's distinct styles of civil and criminal robes, the former being dominantly burgundy-hued while the latter are white with striking red crosses. And don't let's forget the solemn frivolity of their Lordships' (and smattering of Ladyships') little working wigs. Helpfully, the site includes a wee FAQ for the wigly curious, justifying the winter head-warmers thus:

In the early 17th century, wigs were simply part of the fashion of the day for society. Although they had gone out of fashion by the 18th century, judges, the military, the clergy and some other professionals continued to wear smaller, more formal wigs into the 19th century, and they have been retained as part of court dress to the present day. Today, wigs are worn as a symbol of office by the legal professions. The traditional, long full-bottomed wig is now only worn by judges on ceremonial occasions such as during the procession to mark the start of the legal year (called the “kirking of the court”). A shorter, more practical style is worn in court. However, not all judges wear wigs. They are not worn in Justice of the Peace courts, tribunals, or in some proceedings involving children. The wigs are made from horsehair from the tail or mane, which in the past made wigs more practical as it could have the same off-white colour as a powdered wig without the need for powder.

Extremely positively to my mind, the site will also make a concerted effort to publicise materials which previously are likely to have been overlooked or difficult to source, including speeches delivered by judges and their sentencing statements. Moreover, surprisingly cannily, most of these materials are made available via RSS feeds, much to the assistance of your average, occasional Scots blawger. No doubt in part, this joint effort is owed to the pyramidal structure of responsibility which Holyrood's Judiciary and Courts (Scotland) Act of 2008 imposed on the once more-disparate, less formally connected Scottish judicial structures. I admire the spirit behind the judiciary's efforts and they appear to have worked up a site that seems capable appealing to the law's many publics, professional and interested and otherwise. In part, it is also a welcome recognition that Scotland's civic institutions can and ought to move into the imagined national cyberspace and forge connections there.

19 September 2010

One of the ways in which Scotland and England's distinct legal histories finds expression is our respective criminal laws and the distinct institutions charged with their enforcement. Indeed, it is a little known fact, but the history of public prosecution in both countries differs quite substantially. While a unified English and Welsh Crown Prosecution Service was only created in 1986, pre-dated by an emphasis on private agents bringing criminal actions (the police in such instance often being the "private" individuals), the public prosecution of crime in Scotland by Lords Advocate and their procurators fiscal has a far longer history. That distinctiveness is some comfort - but cauld - as our respective prosecutors are certainly equally capable of fouling up or of advancing unnecessary prosecutions predicated on the worst of legal legerdemain. Today it is the turn of England and Wales.

Some of you may be familiar with David Allen Green, an English lawyer who blogs at Jack of Kent. Of late, he has been covering in detail - and I believe is involved in - an imminent appeal by a chap called Paul Chambers, who has suffered for the chronic stupidity at the hands of the police, the CPS and the first instance court, turning an unjust prosecution into an unjust punishment. What, pray, did this villain do? What wicked feat warranted all this concerted punitive effort? Its simple, really. Horrifically simple. A frustrated Chambers made a jest in 140 characters or fewer on Twitter. Specifically, he said:

The full facts are set out over at Jack of Kent. After a legal process with more than a few wends and weaves, Chambers was convicted and loaded with fines and costs amounting to £1,000 and according to Mr Green, has lost two jobs as a result of the CPS' case. Green makes an admirably clear argument about why the "Twitter Joke Trial" case matters. I also commend this treatment of the subject by Glenalmond College's prodigal son Charon QC to you. Like Charon, I wish Mr Chambers every success with his appeal in Doncaster Crown Court. I know very little about English criminal jurisprudence, however it seems to me that the CPS' argument that no mens rea - no criminal intention - is necessary to bring home a conviction under section 127 of the Communications Act 2003 is profoundly dubious. Let's hope that the judges in the Doncaster court sympathise with that assessment.

The case did send my suspicious mind scurrying northward, however and back to the theme of some earlier posts here this week on the criminalisation of domestic abuse in Scotland. After the High Court of Justiciary's judgement in David Hatcher v. Procurator Fiscal, Hamilton, a lacuna opened in our criminal law and non-assault domestic abuse was temporarily legalised. Since, I've been agitating for that lacuna to be recognised and secondly, for that lacuna to be briskly closed. The most obvious way of doing so is for Scottish Ministers to bring a single new offence, passed by Holyrood in the Criminal Justice and Licensing Act 2010 into effect. As I noted on Thursday, Fergus Ewing signalled to the Scottish Women's Aid conference that it was Ministers' intention to do so, and commence the offence's operation from the 6th of October. I've managed to convince Liberal Democrat Justice Spokesman, Robert Brown, to table a parliamentary question in Holyrood to publicly confirm that statement. All well and good. However, for myself, I do have some qualms about the offence as drafted. For those of you who don't keep the whole section suspending in your consciousness, here is what Holyrood passed:

38 Threatening or abusive behaviour

(1) A person (“A”) commits an offence if—

(a) A behaves in a threatening or abusive manner,

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

(2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

(3) Subsection (1) applies to—

(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and

(b) behaviour consisting of—

(i) a single act, or

(ii) a course of conduct.

(4) A person guilty of an offence under subsection (1) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

It will indubitably serve to criminalise the conduct of Mr Hatcher and the like. Happily, there is also no question of strict liability here. Intent is specifically provided for. However, notice that behaviour as defined in the third section includes communication. As a fruminous cybernat, obviously I make it my business to behave in a relentlessly abusive fashion. The justness of the offence, it seems to me, will rest on the question of severity - and in particular what that modal character, the reasonable person, is deemed to find fearful or alarming. Lots of communication is abusive - given its broadest definition - and threatening is a very flexible notion. Obviously, there are the muscular threats of brute carnality - "When next we meet, I'll make it my business to pulp your fat turnip face". They might also be promises of economic ruin - "With my aggressively competitive pricing structure, I'll see your costermonger in the gutter within the tax year" - unveiled romantic threats "Tybalt: Oi, Juliet! Eyes off my Romeo, I'm nurturing his latent homosexual tendencies and fully intend to have him off you within the month" - and so on, and so on. For instance, Richard Baker might be alarmed that I style him the Swine Pursuivant, attempting to associate him with a series of unflatting ideas to his permanent political detriment and disfigure his public career. He may fear for his future under my relentless satire, but I fancy that such fears wouldn't achieve the reticent severity likely to convince the reasonable person. Alarm, too, seems suggestive of higher dudgeon. No doubt the High Court of Justiciary will have its say, soon enough.

Under such a dispensation, in terms of this offence, what - if anything - would have happened to Mr Chambers and his jesting tweet, I find myself wondering? Would the stately but gormless form of the fail whale glide through the spirit of Scottish police, Scottish Procurators and Sheriff, un-buoyed by the fluttering golden wings of reason, fairness and justice?

17 September 2010

Without question, Frederick Rolfe (or "Baron Corvo" as he styled himself) was a queer character. This is ably demonstrated by his best known literary work Hadrian the Seventh (1904), which is generally interpreted as a rebuke to any question of the "death of the author". The protagonist, George Arthur Rose, is a failed and frustrated would-be Catholic priest and is plucked from his embittered obscurity, ordained and taken to Rome by two Churchmen, intent on breaking the black-smoking deadlock of the ongoing Papal Conclave. Whether by connivance or divine intervention, Rose is suddenly elevated to the office of Supreme Pontiff. Nicholas Breakspear is the only Englishman ever to have been made Pope, as Adrian IV. In an echo of his English predecessor, Rose assumes the name of Hadrian VI and begins the heady work of reforming the Catholic Church according to his lights, foiling his clerical foes in Rome and earnestly conniving his way to papal triumph in early 20th Century Europe. Alas! His electric papacy comes to an untimely end. The novel reads as an elaborate revenge fantasy come wish-fulfilment but for all of its ludicrousness (or rather, in large part because of these Quixotic overtones) I remember it fondly as a unique work of the imagination, sprung from the tortured consciousness of a decidedly odd fantasist. In this mostly popely of seasons, I commend it to you.

Others are elsewhere debating Pope Benedict the Umpteenth's ongoing visit to the United Kingdom. I don't intend to add much to those thoughts, save for a broad, atmospheric observation or two. For a blogger without any belief in any deity and vacillating sympathies and antipathies towards Christianity, I've realised that I quote from the King James Bible quite often. This may reasonably be construed as odd. In its way, this blog has witnessed my dissonant combination of feelings towards religion and its creatures - in particular organised Christianity and its representatives - and oscillations between attraction and repulsion. Life, I find, is an unfolding revelation, unanticipated, its tutors very often small, overlooked details and half noticed thoughts, thoughtlessly filed away in some idle, neglected shelf of the memory. Godless souls like myself, I think, too often have too low an estimation of mystery. It smells of clerical leechcraft, wilful foggery. Not so, I say. At least not always. Atheists need to cling to uncertainty and modesty scrupulously, unembarrassedly, existentially. I recently discovered that John Keats once entertained a similar idea. He called it “negative capability”, and in a letter to his brother, explained that “that is when man is capable of being in uncertainties, Mysteries, doubts, without any irritable reaching after fact and reason”. Of late I've also seen Alan Bennett's History Boys, in which the teacher Hector justifies the memorisation of poetry, in the following lines:

I sympathise with that approach to understanding, at least in my own case. Certainly I find it a truism of poetry, taken to heart and preserved in memory. What one learns in one year recurs with a new resonance in another, quite unexpectedly, quite unanticipated. I have minimal faith in the possibility of intellectual illumination coming in a single furious flash. Others are more confident. I've realised, however, that what disgusts me about many of the more boisterous manifestations of godlessness (and remember most of these I've incarnated in my bumptious, aggressively anti-theistic younger selves) is how easy it is. Indeed it amuses me, in a wicked sort of way, that so many of the thrusting skeptics one encounters - our would-be scientists and doubters - are so evangelical in the seeking after a succession of certainties. Isn't that a classic case for psychoanalysis? The noisy man crying know thyself precisely has no insight into himself, and like all guilty-minded men, sees everywhere everyone else commissioning his own sins.

16 September 2010

On Monday, I drew the recent case of Hatcher v. Procurator Fiscal, Hamilton to your attention, arguing that in their resolution of that matter, the High Court of Justiciary had, to all intents and purposes, legalised non-assault domestic abuse in Scotland. What's more, the decision seems to me to be premised on some fundamentally questionable reasoning about the much mooted public/private divide which one does not need to be a feminist jurisprude to find concerning. In short, it is a judgement to shock, but shock has not been forthcoming. Since then, I've been quietly agitating behind the scenery to try to prod, cajole and otherwise compel an awareness of the judgement into the public sphere, both parliamentary and press. My fellow, occasional Scots blawger Love and Garbagepicked up the thread in a piece more explicitly critical of the minimal media coverage this case received, while what coverage there was managed to miss the substance of the case's newsworthiness entirely:

The lack of media coverage of the decision and its implications tells us a great deal about that sphere and its relation with the law.

Quite so, quite so. Moreover, it seemed to me that the gap torn out of our criminal law by the Court's judgement in Hatcher could be readily remedied by Holyrood - if only Ministers were alerted and induced to bring forward delegated legislation promptly. The cost of delay nothing less than the wholesale denial of justice for those who are domestically abused, but not assaulted by their abusive relations. I've blogged before on the too-often ignored phenomenon of the ubiquitous Commencement and Short Title section in Acts of Parliament. Acts don't slip into law immediately, once majorities have been marshalled and votes taken. Nor do they find legal life once the Queen has granted her Royal Assent. Rather, tacked on near the end, one almost always finds this wee section. Its effect is to hold the provisions of a passed Act in abeyance and empowers ministers to lay orders before parliament that particular sections will commence their lawful operation. At times, this can look like a pocket-veto, at least temporarily. More generally, it can be a helpful way of giving agencies time to put in place changes that will allow the new law to function smoothly. Otherwise, like all pockets, ministers' accumulate the forgotten detritus. Generally speaking, our tribunes are appalling custodians of their legislation once it is passed, paying minimal attention to the haste or slowness of ministers' commencement orders.

So what is the relevance of all that here? Well, in the lately passed Criminal Justice and Licensing (Scotland) Act 2010, two relevant provisions are made. Firstly, as usual, ministers are empowered to issue commencement orders to bring most of the other sections into effect. Secondly, Holyrood sanctioned the new offence of threatening or abusive behaviour which would almost certainly apply and criminalise David Hatcher's conduct, lately legalised by the High Court. The section reads thus:

38 Threatening or abusive behaviour

(1) A person (“A”) commits an offence if—

(a) A behaves in a threatening or abusive manner,

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

(2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

(3) Subsection (1) applies to—

(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and

(b) behaviour consisting of—

(i) a single act, or

(ii) a course of conduct.

(4) A person guilty of an offence under subsection (1) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

The breadth of this offence is certainly not without its concerns for the liberally minded. However, if a whole range of individuals like Mrs Hatcher are not to face abuse without legal recourse, it seemed and seems to me to be crucial that pressure be put on Ministers to speedily issue a commencement order for section 38 and lay it before Holyrood. You can imagine my concern, then, that the issue raised by Hatcher received no real airing in the public forum that might prove to be a spur to action, if Ministers hadn't been paying full attention. Happily, it seems that despite our clueless and inattentive media, someone knows their business and has paid attention to the implications of the Justiciary's ridicious decision in Hatcher. I'm informed that both Elish Angiolini, the Lord Advocate and the Minister for Community Safety Fergus Ewing were yesterday speaking at the annual conference of Scottish Women's Aid, which aptly enough met to discuss justice responses to domestic abuse. The Manager of Scottish Women's Aid tells me that the speakers confirmed that it is their intention that section 38 will speedily commence from the 6th of October. Hatcher's shameful lacuna will be filled in, in timely fashion. I've seen no official confirmation of this yet, but no doubt the order will be put before Holyrood in due course. A welcome result then, but one realised in the face of the continuing lazy indifference of the Scottish media, who seem to leave every sinew unstrained in the pursuit of truth and justice.

14 September 2010

Lest we forget, that fellowship of formidable certainty, that band of speculative doubters Senators Menendez, Gillibrand, Lautenberg and Schumer are still about their alchemical business of transforming tragedy into political stature. Alas, their fortunes do not prosper well. Earlier this week, Foreign Secretary William Hague denied their "investigative team" access to British officials, presumably those with some knowledge of what transpired in the Prisoner Transfer Agreement negotiation. "So much for British hospitality" pouts the New York Daily News. After all their pomp, it is notable that none of the four American politicians have condescended to cross the water themselves and press their cases and pursue their doubts - however eccentric or conspiratorial - in person. No doubt they are busy folk, given the American Congressional Election in November.

Presumably as a consequence of their reluctance to substantiate their allegations in person, the Senators' questing creatures will not meet Scottish Ministers but instead will merely encounter officials. I imagine these may be staff associated with the Cabinet Secretary for Justice with some insight into the compassionate release process. No doubt to their significant illumination, the group will also meet Richard Baker, Labour's liveried Swine Pursuivant in Justice matters. Heaven knows what he hopes to tell them. Still, a cup of tea and a digestive biscuit is always welcome. Presaging these encounters, Alex Salmond sent the following letter to all four Senators late last week. In the spirit of public record, I copy the correspondence below. It is easily the most combative of Eck's epistles to this gang of four and for those of us who have looked with scorn on their demeaning speculations and stubborn conspiracy-theorising clowneries, its politely direct but sternly and frankly rebuking terms make for quiet joy.

10 September 2010

Dear Senators Menendez, Gillibrand, Lautenberg and Schumer,

Thank you for your letters of 19 and 20 August 2010.

Your letter of 19 August attempts to suggest that there is circumstantial evidence that commercial interests played a role in the release of Al-Megrahi. This seems to be a considerable weakening of your original position, but is still totally wrong. There is no evidence, circumstantial or otherwise, that links decisions made by the Scottish Government to commercial interests. Indeed, the substantial evidence that does exist shows that the Scottish Government specifically rejected any attempt to bring commercial or business considerations into the decision-making process on compassionate release, and stated that decisions would be based on judicial grounds alone.

I am also concerned that, in your letter of 20 August, you once again quote from letters published by the Scottish Government setting out the representations that were made to us, without drawing attention to the responses which make clear that commercial considerations would play no part in the decision-making process. To then accuse the Scottish Government of selectively publishing correspondence, when it is you who are selectively quoting from material published proactively by the Scottish Government, significantly undermines your credibility.

The evidence of commercial influence that does exist relates to the Prisoner Transfer Agreement (PTA) that the UK Government signed with Libya. Indeed, you quote Saif Gaddaffi as publicly commenting that the commercial issues were related to the PTA.

As I highlighted in my letter of 2 August, it was the Scottish Government, on 7 June 2007, which first drew attention to the UK Government's negotiations with the Libyan Government, highlighting our strong opposition to them. I asked you, in my letter of 15 August, for copies of any public comments on this important issue which you may have made at the time, either individually or collectively. It appears that when the Scottish Government was using every means at its disposal to oppose the PTA between the UK and Libya, you were silent.

You refer to extensive correspondence between the Scottish and UK Governments regarding the PTA. Once again, however, you fail to mention that this shows the Scottish Government consistently opposing the signing of any PTA unless it specifically excluded AI-Megrahi. This, and the fact that the application for prisoner transfer was rejected, fatally undermines your line of argument.

You refer to comments that the Scottish Government would have to deal with the consequences of the UK's decision not to exclude AI-Megrahi from the PTA with Libya. This is a statement of fact. The UK Government had gone against our wishes and left the Scottish Government to deal with any application for prisoner transfer that was submitted, a situation that it is clear we were and are very unhappy with. You suggest that it is uncertain how the Scottish Government dealt with those consequences. This is simply not true. The consideration and rejection of the prisoner transfer application are matters of public record and to pretend otherwise, as you attempt to do, appears very contrived.

Your letter of 19 August goes on to conflate the process of application for prisoner transfer with the quite separate process of applying for compassionate release. I have explained these separate processes at some length in our previous correspondence. It is of great concern that, despite these explanations, you seem unable or unwilling to understand the nature of these separate legal processes.

On some of the points of detail you raise, I would note that the only redaction from the letter of 22 June to the UK Foreign and Commonwealth Office was the name of the UK Government official to whom it was addressed. Permission to publish this name has been refused by the UK Government and, in any event, has absolutely no bearing on the facts of the matter. In the 16 July 2009 letter from the Cabinet Secretary for Justice to the UK Foreign Secretary, the only passage that has been redacted is due to the US Government withholding permission to release material relating to it. Finally, the letter from the Qatari Minister which was attached to correspondence from the Qatari Embassy in London dated 31 July 2009 is available on the Scottish Government website. The letter from Khalid Bin Mohamed al-Attiyah, dated 17 July 2009, was also received direct and therefore appears twice in the correspondence on the website.

Given the consistent and compelling information I have now provided, I would ask you to confirm you accept that:

The Scottish Government had no contact with BP in relation to decisions made about AI-Megrahi; The Scottish Government consistently opposed the signing of a PTA between the UK and Libyan Governments unless AI-Megrahi was excluded; and The Scottish Government made the decision on compassionate release on judicial grounds alone and made this clear to those who made representations to us.

If you are not able to accept these irrefutable and well-evidenced facts, which I have set out clearly in our correspondence and are supported by extensive documentation, it calls into question your ability to conduct any credible and impartial investigation into these matters.

I am aware that staff from Senator Menendez's office have been in contact with my office to try to arrange meetings with Scottish Government Ministers and officials. As I have said previously, the Scottish Government has nothing to hide and nothing to fear from any properly constituted inquiry, but the Scottish Government is rightly accountable to the Scottish Parliament and not to the US Senate. Nevertheless, as a matter of courtesy, I would be willing to make appropriate officials available to meet staff from your offices should they decide to visit Scotland. The purpose of any such meeting would be to provide whatever further background information may be helpful to your understanding of these matters. Officials would not be giving evidence in any formal context.

There are other points of detail in your 19 August 2010 letter, but none of these raises any new issues of substance or challenge the view that the decisions the Scottish Government made in relation to AI-Megrahi were made with integrity and according to the due process of Scots Law.

I believe that the Scottish Government has given every assistance to you and to the Foreign Relations Committee on this matter and, as noted above, I am content to offer the courtesy of an official level meeting if staff from your offices visit Scotland. However, as your recent letters raise no new issues of substance, I am now drawing a line under this correspondence.

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

“My initial mind picture was of a scanty bikini'd individual wallowing in a bath tub of peat. However I've since learned to warm to him, and like peat he's slow to draw but quick to heat...” ~Crinkly & Ragged Arsed Philosophers

Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.